Dismiss in default or to pass ex parte orders

General—Order IX of the Code deals with the appearance of parties and the consequences of non-appearance on the first hearing. Order XVII, Rule 2, lays down that the non-appearance of a party on an adjourned hearing may lead to similar consequences.

Default by parties—Order IX, Rule 3, provides that when neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed.

Default by defendants—(a) Order IX, Rule 5, provides that, if on the day fixed in summons for the defendant to appear, and answer, the plaintiff appears and the defendant does not appear, and it is proved that the summons was duly served in sufficient time to enable the defendant to appear and, answer on the day named in the summons, the Court may proceed to try the case ex parte. Even in such cases, however, the plaintiff must prove this case to the satisfaction of the Court, before he can obtain a decree. The defendant, it will be observed, may apply under Order IX, Rule 13, for an order to set aside the ex parte judgment at any period between the date of the judgment and the thirtieth day from the date of the decree or where the summons was not duly served, from the date on which he has knowledge of the decree {See Article 123, Schedule 1, of the Indian Limitation Act). The provisions of Section 5 of the Indian Limitation Act, 1963, have recently been made applicable to all applications for the setting aside of ex parte decrees and for restoration of suits under Order 9, Rules 4 and 9. These applications may, therefore, be admitted even after the period of thirty days if the applicant satisfies the Court that he had sufficient cause for not making the application within such period. If he satisfies the Court that the summons was not ―duly served‖, or that he was prevented by sufficient ―cause‖ from appearing when the suit was called for hearing, the Court should set aside the order on such terms as to costs or otherwise as it may deem fit.

(b) Attention is drawn to Order IX, Rule 7, which lays down the procedure for setting aside ex parte proceeding when the hearing of the suit has been adjourned ex parte but no ex parte decree has been passed.

Default by plaintiff—Order IX, Rule 8, lays down that if the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order dismissing the suit, unless the claim is admitted wholly or in part, in which case the claim shall be decreed only to the extent to which it is admitted.

Hasty dismissal not advisable—The above rules must be worked in a reasonable manner, otherwise they will result in a number of application for setting aside orders passed in the absence of one or both parties. It is possible that a party may have temporarily gone away to call his counsel or to refresh himself and a person cannot be expected to be in constant attendance throughout the day. The Court should to avoid hardship, lay aside the case where any party does not appear when the case is called. The case may be called again, later in the day after the other work has been finished or when both the parties turn up and the Court can conveniently take up the case that had been laid down. If these rules are worked in a reasonable manner applications for restoration of suits or setting aside of ex parte orders would be reduced in number. Such applications generally lead to delay in the disposal of cases and waste a good deal of the time of the Courts and the litigants.

Hasty dismissal not advisable—The tendency to dismiss cases in default or to pass ex parte orders in a hasty manner in order to show an increased outturn is to be strongly depreciated and is not to be resorted to in any case. The Presiding Officers should note down the time in their own hand when a case is dismissed in default or an oder to proceed ex parte is passed.

Categories: CIVIL

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